CITY OF CINCINNATI v. UNITED STATES | FindLaw CITY OF CINCINNATI v. UNITED STATES CITY OF CINCINNATI v. UNITED STATES United States Court of Appeals,Federal Circuit. CITY OF CINCINNATI, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. No. 98-5039. Decided: September 01, 1998 Before NEWMAN, RADER, and BRYSON, Circuit Judges.John J. Williams, Assistant City Solicitor, City of Cincinnati, Cincinnati, Ohio, argued for plaintiff-appellant. With him on the brief was Fay D. Dupuis, City Solicitor. Colleen A. Conry, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for defendant-appellee. On the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Kirk T. Manhardt, Assistant Director, and Miguel A. Serrano, Trial Attorney. Among the oldest principles of constitutional law is that a state may not tax the United States.

That issue has been settled since 1819, when the Supreme Court held in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579, that the State of Maryland could not tax the Bank of the United States. That principle, which has been extended to municipalities and subdivisions of states, is simple and absolute: A state or local governmental body may not tax a federal entity in the absence of congressional consent. See United States v. County of Allegheny, 322 U.S. 174, 177, 64 S.Ct. 908, 88 L.Ed. 1209 (1944). In practice, however, the principle has proved difficult to apply. See United States v. New Mexico, 455 U.S. 720, 733-38, 102 S.Ct. 1373, 71 L.Ed.2d 580 (1982).

One issue courts have had to decide is whether the assessment in question should be characterized as a tax, and thus impermissible when imposed on a federal entity, or whether the assessment should be considered a fee for services provided to the federal entity, and therefore permissible. See, e.g., United States v. City of Huntington, 999 F.2d 71 (4th Cir.1993) (municipal “fire service fee” and “flood protection fee” were taxes that could not be imposed upon federal entities); United States v. City of Columbia, 914 F.2d 151 (8th Cir.1990) (surcharge on municipal water and electric utility bills was a fee, not a tax, and therefore could be assessed against federal entities). While that question is often difficult to answer, we do not reach it in this case, because the city's complaint runs aground on a preliminary matter: It fails to establish the elements of an implied contract between the city and the United States and therefore fails to state a claim upon which the Court of Federal Claims may grant relief. For that reason, we affirm the judgment of the trial court dismissing the complaint.

I The City of Cincinnati operates a stormwater management system, which is designed to control stormwater runoff within the city. A city ordinance provides for a “storm drainage service charge” to be imposed on property owners within the city in order to pay the expenses of the stormwater management system. The amount of the assessment against each property owner is a function of the size of the property and its “intensity of development.” The general goal of the assessment formula is to impose higher assessments on properties that are expected to produce more stormwater runoff, such as commercial or industrial properties, and to impose lower assessments on properties that are expected to produce less stormwater runoff, such as residential or undeveloped properties. Not all of the distinctions in the rates of assessment can be accounted for by the expected amount of stormwater runoff from particular kinds of properties, however. As counsel for the city confirmed at oral argument, some distinctions among the assessment levels are based on a decision that certain kinds of properties, such as churches, should be subject to lower assessments. The property owner in this case is a federal entity, the National Institute of Occupational Safety and Health (NIOSH), which operates a facility within the City of Cincinnati.

The city contends that NIOSH owes more than $60,000 in storm drainage service charges. NIOSH has declined to pay the assessments, contending that the storm drainage service charge amounts to an unconstitutional tax on a federal entity. The city filed suit in the Court of Federal Claims to recover the assessed charges, arguing that the storm drainage charge is not a tax, but a charge for services that the United States, like any other user of city services, is required to pay. The Court of Federal Claims dismissed the complaint for failure to state a claim upon which relief could be granted. In a thorough opinion, the court noted that the federal government can properly be charged for services that it purchases from local governmental entities, such as water or other utility services. The court held, however, that the storm drainage charge, which was imposed on all property owners within the city and was not the product of a voluntary purchase decision by the federal government, constitutes a tax, not a fee for services, and therefore could not be exacted from a federal entity such as NIOSH. The city appeals from that decision.

II The Court of Federal Claims has jurisdiction “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The trial court understood the city to be basing its invocation of jurisdiction on an implied-in-fact contract between the city and the United States, and the city confirmed at oral argument that it was basing its claim of jurisdiction on that ground. As the Court of Federal Claims explained, the invocation of the implied contract theory is sufficient in this case to set forth a basis for subject-matter jurisdiction, because the city has made a non-frivolous assertion of an implied contract with the United States. See Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997); Lewis v.

United States, 70 F.3d 597, 602-04 (Fed.Cir.1995). As the court further explained, however, the fact that subject-matter jurisdiction is properly invoked does not mean that the city has stated a claim upon which relief can be granted. That question turns on whether the city's stormwater drainage charges can be considered the product of an implied-in-fact contract between the city and the United States. If not, the Court of Federal Claims may not grant relief to the city, even if the city might have a right to recover the charges under another theory of liability and in another forum. An implied-in-fact contract is one “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed.

816 (1923); see also Hercules, Inc. v. United States, 516 U.S. 417, 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). Like an express contract, an implied-in-fact contract requires “(1) mutuality of intent to contract; (2) consideration; and, (3) lack of ambiguity in offer and acceptance.” City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990); see also H.F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed.Cir.1984); Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474, 482 (1976).

When the United States is a party, a fourth requirement is added: The government representative whose conduct is relied upon must have actual authority to bind the government in contract. See City of El Centro, 922 F.2d at 820. In short, an implied-in-fact contract arises when an express offer and acceptance are missing but the parties' conduct indicates mutual assent. See Chavez v. United States, 18 Cl.Ct. 540, 544 (1989). Implied-in-fact contracts, which are within the jurisdiction of the Court of Federal Claims, differ significantly from implied-in-law contracts, which impose duties that are deemed to arise by operation of law and are outside the jurisdiction of the Court of Federal Claims. See Hercules, Inc., 516 U.S. at 423, 116 S.Ct. 981; Merritt v. United States, 267 U.S. 338, 340-41, 45 S.Ct. 278, 69 L.Ed. 643 (1925); Russell Corp., 537 F.2d at 482.

The relationship between the city and NIOSH with respect to the storm drainage service charge did not result in an implied-in-fact contract. The storm drainage service charge was not imposed as a result of a consensual arrangement between the city and the United States, as would be true in the case of a voluntary purchase of utilities or other services. Instead, the stormwater drainage service charge was an assessment imposed on the United States involuntarily, by virtue of its status as a property owner. While the United States may be said to be a beneficiary of the storm drainage services provided by the city, it was not offered the opportunity to choose whether to accept those benefits, and it cannot be said to have taken any action (other than not moving out of Cincinnati when the charges were assessed) to indicate its willingness to pay the charges. Under these circumstances, we are unable to discern the basis for an implied-in-fact contract in which the United States has voluntarily undertaken certain obligations that the Court of Federal Claims is empowered to enforce. See, e.g., Midcoast Aviation, Inc. v. General Elec.

Credit Corp., 907 F.2d 732, 743 (7th Cir.1990) (in an implied-in-fact contract acceptance “must be voluntary and knowing”); Alde, S.A. v. United States, 28 Fed. Cl. 26, 32 (1993) (“compelled acquiescence” does not indicate intent to enter into a contract; rather, “voluntary assent” is necessary). The fact that the United States may benefit from the storm drainage services provided by the city does not create an implied-in-fact contract to pay for those services. See Trauma Serv. Group, 104 F.3d at 1327 (noting that the receipt of services might create an implied-in-law contract, but that the Court of Federal Claims is without jurisdiction to entertain such claims). We therefore agree with the Court of Federal Claims that the city's complaint had to be dismissed for failure to state a claim upon which relief could be granted. We part company with the trial court's analysis in one respect, however.

The trial court regarded the question whether there was an implied-in-fact contract between the city and the United States to be essentially the same question as whether the storm drainage service charge was a permissible fee for services or an impermissible tax. We disagree that the two inquiries are necessarily the same. As we have stated above, the involuntary nature of the storm drainage service charge is dispositive of the former inquiry: There can be no implied-in-fact contract without voluntary acceptance of the city's services. The involuntary nature of the charge, however, is not dispositive of the latter inquiry. There may be some instances in which a municipal assessment is involuntarily imposed but would nonetheless be considered a permissible fee for services rather than an impermissible tax. Our decision in this case does not answer that question and thus we do not hold that Cincinnati's storm drainage service charge is a tax that cannot constitutionally be imposed on a federal entity. What we do hold is that the complaint, which was based on a theory of implied-in-fact contract, fails to provide any basis for concluding that there was an implied-in-fact contract between the city and the United States. The complaint therefore fails to state a claim upon which the Court of Federal Claims is empowered to grant relief.

AFFIRMED. CITY OF CINCINNATI v. U.S. | 153 F.3d 1375 (1998) | Leagle.com 153 F.3d 1375 (1998) CITY OF CINCINNATI, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. United States Court of Appeals, Federal Circuit. September 1, 1998. Citing Case Attorney(s) appearing for the Case John J. Williams, Assistant City Solicitor, City of Cincinnati, Cincinnati, Ohio, argued for plaintiff-appellant. With him on the brief was Fay D. Dupuis, City Solicitor. Colleen A. Conry, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, argued for defendant-appellee. On the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Kirk T. Manhardt, Assistant Director, and Miguel A. Serrano, Trial Attorney. Before NEWMAN, RADER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge. Among the oldest principles of constitutional law is that a state may not tax the United States. That issue has been settled since 1819, when the Supreme Court held in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579, that the State of Maryland could not tax the Bank of the United States. That principle, which has been extended to municipalities and subdivisions of states, is simple and absolute: A state or local governmental body may not tax a federal entity in the absence of congressional consent. See United States v. County of Allegheny, 322 U.S. 174 , 177, 64 S.Ct. 908, 88 L.Ed. 1209 (1944). In practice, however, the principle has proved difficult to apply. See United States v. New Mexico, 455 U.S. 720 , 733-38, 102 S.Ct. 1373, 71 L.Ed.2d 580 (1982).

One issue courts have had to decide is whether the assessment in question should be characterized as a tax, and thus impermissible when imposed on a federal entity, or whether the assessment should be considered a fee for services provided to the federal entity, and therefore permissible. See, e.g., United States v. City of Huntington, 999 F.2d 71 (4th Cir.1993) (municipal "fire service fee" and "flood protection fee" were taxes that could not be imposed upon federal entities); United States v. City of Columbia, 914 F.2d 151 (8th Cir.1990) (surcharge on municipal water and electric utility bills was a fee, not a tax, and therefore could be assessed against federal entities). While that question is often difficult to answer, we do not reach it in this case, because the city's complaint runs aground on a preliminary matter: It fails to establish the elements of an implied contract between the city and the United States and therefore fails to state a claim upon which the Court of Federal Claims may grant relief. For that reason, we affirm the judgment of the trial court dismissing the complaint.

I The City of Cincinnati operates a stormwater management system, which is designed to control stormwater runoff within the city. A city ordinance provides for a "storm drainage service charge" to be imposed on property owners within the city in order to pay the expenses of the stormwater management system. The amount of the assessment against each property owner is a function of the size of the property and its "intensity of development." The general goal of the assessment formula is to impose higher assessments on properties that are expected to produce more stormwater runoff, such as commercial or industrial properties, and to impose lower assessments on properties that are expected to produce less stormwater runoff, such as residential or undeveloped properties. Not all of the distinctions in the rates of assessment can be accounted for by the expected amount of stormwater runoff from particular kinds of properties, however. As counsel for the city confirmed at oral argument, some distinctions among the assessment levels are based on a decision that certain kinds of properties, such as churches, should be subject to lower assessments. The property owner in this case is a federal entity, the National Institute of Occupational Safety and Health (NIOSH), which operates a facility within the City of Cincinnati.

The city contends that NIOSH owes more than $60,000 in storm drainage service charges. NIOSH has declined to pay the assessments, contending that the storm drainage service charge amounts to an unconstitutional tax on a federal entity. The city filed suit in the Court of Federal Claims to recover the assessed charges, arguing that the storm drainage charge is not a tax, but a charge for services that the United States, like any other user of city services, is required to pay. The Court of Federal Claims dismissed the complaint for failure to state a claim upon which relief could be granted. In a thorough opinion, the court noted that the federal government can properly be charged for services that it purchases from local governmental entities, such as water or other utility services. The court held, however, that the storm drainage charge, which was imposed on all property owners within the city and was not the product of a voluntary purchase decision by the federal government, constitutes a tax, not a fee for services, and therefore could not be exacted from a federal entity such as NIOSH. The city appeals from that decision.

II The Court of Federal Claims has jurisdiction "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). The trial court understood the city to be basing its invocation of jurisdiction on an implied-in-fact contract between the city and the United States, and the city confirmed at oral argument that it was basing its claim of jurisdiction on that ground. As the Court of Federal Claims explained, the invocation of the implied contract theory is sufficient in this case to set forth a basis for subject-matter jurisdiction, because the city has made a non-frivolous assertion of an implied contract with the United States. See Trauma Serv. Group v. United States, 104 F.3d 1321 , 1325 (Fed.Cir.1997); Lewis v.

United States, 70 F.3d 597 , 602-04 (Fed.Cir.1995). As the court further explained, however, the fact that subject-matter jurisdiction is properly invoked does not mean that the city has stated a claim upon which relief can be granted. That question turns on whether the city's stormwater drainage charges can be considered the product of an implied-in-fact contract between the city and the United States. If not, the Court of Federal Claims may not grant relief to the city, even if the city might have a right to recover the charges under another theory of liability and in another forum. An implied-in-fact contract is one "founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding." Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592 , 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed.

816 (1923); see also Hercules, Inc. v. United States, 516 U.S. 417 , 424, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). Like an express contract, an implied-in-fact contract requires "(1) mutuality of intent to contract; (2) consideration; and, (3) lack of ambiguity in offer and acceptance." City of El Centro v. United States, 922 F.2d 816 , 820 (Fed.Cir.1990); see also H.F. Allen Orchards v. United States, 749 F.2d 1571 , 1575 (Fed.Cir.1984); Russell Corp. v. United States, 210 Ct.Cl. 596, 537 F.2d 474 , 482 (1976).

When the United States is a party, a fourth requirement is added: The government representative whose conduct is relied upon must have actual authority to bind the government in contract. See City of El Centro, 922 F.2d at 820. In short, an implied-in-fact contract arises when an express offer and acceptance are missing but the parties' conduct indicates mutual assent. See Chavez v. United States, 18 Cl.Ct. 540, 544 (1989). Implied-in-fact contracts, which are within the jurisdiction of the Court of Federal Claims, differ significantly from implied-in-law contracts, which impose duties that are deemed to arise by operation of law and are outside the jurisdiction of the Court of Federal Claims. See Hercules, Inc., 516 U.S. at 423, 116 S.Ct. 981; Merritt v. United States, 267 U.S. 338 , 340-41, 45 S.Ct. 278, 69 L.Ed. 643 (1925); Russell Corp., 537 F.2d at 482.

The relationship between the city and NIOSH with respect to the storm drainage service charge did not result in an implied-in-fact contract. The storm drainage service charge was not imposed as a result of a consensual arrangement between the city and the United States, as would be true in the case of a voluntary purchase of utilities or other services. Instead, the stormwater drainage service charge was an assessment imposed on the United States involuntarily, by virtue of its status as a property owner. While the United States may be said to be a beneficiary of the storm drainage services provided by the city, it was not offered the opportunity to choose whether to accept those benefits, and it cannot be said to have taken any action (other than not moving out of Cincinnati when the charges were assessed) to indicate its willingness to pay the charges. Under these circumstances, we are unable to discern the basis for an implied-in-fact contract in which the United States has voluntarily undertaken certain obligations that the Court of Federal Claims is empowered to enforce. See, e.g., Midcoast Aviation, Inc. v. General Elec.

Credit Corp., 907 F.2d 732 , 743 (7th Cir.1990) (in an implied-in-fact contract acceptance "must be voluntary and knowing"); Alde, S.A. v. United States, 28 Fed. Cl. 26, 32 (1993) ("compelled acquiescence" does not indicate intent to enter into a contract; rather, "voluntary assent" is necessary). The fact that the United States may benefit from the storm drainage services provided by the city does not create an implied-in-fact contract to pay for those services. See Trauma Serv. Group, 104 F.3d at 1327 (noting that the receipt of services might create an implied-in-law contract, but that the Court of Federal Claims is without jurisdiction to entertain such claims). We therefore agree with the Court of Federal Claims that the city's complaint had to be dismissed for failure to state a claim upon which relief could be granted. We part company with the trial court's analysis in one respect, however.

The trial court regarded the question whether there was an implied-in-fact contract between the city and the United States to be essentially the same question as whether the storm drainage service charge was a permissible fee for services or an impermissible tax. We disagree that the two inquiries are necessarily the same. As we have stated above, the involuntary nature of the storm drainage service charge is dispositive of the former inquiry: There can be no implied-in-fact contract without voluntary acceptance of the city's services. The involuntary nature of the charge, however, is not dispositive of the latter inquiry. There may be some instances in which a municipal assessment is involuntarily imposed but would nonetheless be considered a permissible fee for services rather than an impermissible tax. Our decision in this case does not answer that question and thus we do not hold that Cincinnati's storm drainage service charge is a tax that cannot constitutionally be imposed on a federal entity. What we do hold is that the complaint, which was based on a theory of implied-in-fact contract, fails to provide any basis for concluding that there was an implied-in-fact contract between the city and the United States. The complaint therefore fails to state a claim upon which the Court of Federal Claims is empowered to grant relief.

AFFIRMED. COATES v. CITY OF CINCINNATI | FindLaw COATES v. CITY OF CINCINNATI COATES v. CITY OF CINCINNATI COATES v. CITY OF CINCINNATI, (1971) No. 117 Argued: January 11, 1971 Decided: June 1, 1971 Cincinnati, Ohio, ordinance making it a criminal offense for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . .," which has not been narrowed by any construction of the Ohio Supreme Court, held violative on its face of the due process standard of vagueness and the constitutional right of free assembly and association. Pp. 614-616. 21 Ohio St. 2d 66, 255 N. E. 2d 247, reversed. STEWART, J., delivered the opinion of the Court, in which DOUGLAS, HARLAN, BRENNAN, and MARSHALL, JJ., joined.

BLACK, J., filed a separate opinion, post, p. 616. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN, J., joined, post, p. 617. Robert R. Lavercombe argued the cause and filed a brief for appellants. A. David Nichols argued the cause for appellee. With him on the brief was William A. McClain. MR. JUSTICE STEWART delivered the opinion of the Court. A Cincinnati, Ohio, ordinance makes it a criminal offense for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . ." 1 [402 U.S. 611, 612] The issue before us is whether this ordinance is unconstitutional on its face. The appellants were convicted of violating the ordinance, and the convictions were ultimately affirmed by a closely divided vote in the Supreme Court of Ohio, upholding the constitutional validity of the ordinance. 21 Ohio St. 2d 66, 255 N. E. 2d 247.

An appeal from that judgment was brought here under 28 U.S.C. 1257 (2), 2 and we noted probable jurisdiction, 398 U.S. 902 . The record brought before the reviewing courts tells us no more than that the appellant Coates was a student involved in a demonstration and the other appellants were pickets involved in a labor dispute. For throughout this litigation it has been the appellants' position that the ordinance on its face violates the First and Fourteenth Amendments of the Constitution. Cf. Times Film Corp. v. Chicago, 365 U.S. 43 . In rejecting this claim and affirming the convictions the Ohio Supreme Court did not give the ordinance any construction at variance with the apparent plain import of its language. The court simply stated: "The ordinance prohibits, inter alia, `conduct . . . annoying to persons passing by.' The word `annoying' is a widely used and well understood word; it is not necessary to guess its meaning.

`Annoying' is the present participle of the transitive verb `annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate. [402 U.S. 611, 613] "We conclude, as did the Supreme Court of the United States in Cameron v. Johnson, 390 U.S. 611 , 616, in which the issue of the vagueness of a statute was presented, that the ordinance `clearly and precisely delineates its reach in words of common understanding. It is a "precise and narrowly drawn regulatory statute [ordinance] evincing a legislative judgment that certain specific conduct be . . . proscribed."'" 21 Ohio St. 2d, at 69, 255 N. E. 2d, at 249. Beyond this, the only construction put upon the ordinance by the state court was its unexplained conclusion that "the standard of conduct which it specifies is not dependent upon each complainant's sensitivity." Ibid.

But the court did not indicate upon whose sensitivity a violation does depend - the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man. 3 [402 U.S. 611, 614] We are thus relegated, at best, to the words of the ordinance itself. If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct. Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, "men of common intelligence must necessarily guess at its meaning." Connally v. General Construction Co., 269 U.S. 385, 391 .

It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. Gregory v. Chicago, 394 U.S. 111, 118 , 124-125 (BLACK, J., concurring). It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed. 4 [402 U.S. 611, 615] But the vice of the ordinance lies not alone in its violation of the due process standard of vagueness. The ordinance also violates the constitutional right of free assembly and association. Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these constitutional freedoms. See Street v. New York, 394 U.S. 576, 592 ; Cox v.

Louisiana, 379 U.S. 536, 551 -553; Edwards v. South Carolina, 372 U.S. 229, 238 ; Terminiello v. Chicago, 337 U.S. 1 ; Cantwell v. Connecticut, 310 U.S. 296, 311 ; Schneider v. State, 308 U.S. 147, 161 . The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be "annoying" to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. 5 [402 U.S. 611, 616] And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is "annoying" because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.

6 The ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech. The judgment is reversed. Footnotes [ Footnote 1 ] "It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both." Section 901-L6, Code of Ordinances of the City of Cincinnati (1956).

[ Footnote 2 ] "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: . . . . . "(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." [ Footnote 3 ] Cf. Chaplinsky v. New Hampshire, 315 U.S. 568 , where this Court upheld a statute that punished "offensive, derisive or annoying" words. The state courts had construed the statute as applying only to such words "as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed." The state court also said: "The word `offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . .

The English language has a number of words and expressions which by general consent are `fighting words' when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace." This Court was "unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression." 315 U.S., at 573 . [ Footnote 4 ] In striking down a very similar ordinance of Cleveland, Ohio, as constitutionally invalid, the Court of Appeals for Cuyahoga County said: "As it is written, the disorderly assembly ordinance could be used to incriminate nearly any group or individual. With little effort, [402 U.S. 611, 615] one can imagine many . . . assemblages which, at various times, might annoy some persons in the city of Cleveland.

Anyone could become an unwitting participant in a disorderly assembly, and suffer the penalty consequences. It has been left to the police and the courts to decide when and to what extent ordinance Section 13.1124 is applicable. Neither the police nor a citizen can hope to conduct himself in a lawful manner if an ordinance which is designed to regulate conduct does not lay down ascertainable rules and guidelines to govern its enforcement. This ordinance represents an unconstitutional exercise of the police power of the city of Cleveland, and is therefore void." Cleveland v. Anderson, 13 Ohio App. 2d 83, 90, 234 N. E. 2d 304, 309-310.

[ Footnote 5 ] In striking down a very similar ordinance of Toledo, Ohio, as constitutionally invalid, the Municipal Court of that city said: "Under the provisions of Sections 17-5-10 and 17-5-11, arrests and prosecutions, as in the present instance, would have been effective as against Edmund Pendleton, Peyton Randolph, Richard Henry Lee, George Wythe, Patrick Henry, Thomas Jefferson, George Washington and others for loitering and congregating in front of Raleigh Tavern on Duke of Gloucester Street in Williamsburg, Virginia, at any time during the summer of 1774 to the great annoyance [402 U.S. 611, 616] of Governor Dunsmore and his colonial constables." City of Toledo v. Sims, 14 Ohio Op. 2d 66, 69, 169 N. E. 2d 516, 520. [ Footnote 6 ] The alleged discriminatory enforcement of this ordinance figured prominently in the background of the serious civil disturbances that took place in Cincinnati in June 1967.

See Report of the National Advisory Commission on Civil Disorders 26-27 (1968). MR. JUSTICE BLACK. First. I agree with the majority that this case is properly before us on appeal from the Supreme Court of Ohio. Second. This Court has long held that laws so vague that a person of common understanding cannot know what is forbidden are unconstitutional on their face. Lanzetta v. New Jersey, 306 U.S. 451 (1939), United States v. Cohen Grocery Co., 255 U.S. 81 (1921). Likewise, laws which broadly forbid conduct or activities which are protected by the Federal Constitution, such as, for instance, the discussion of political matters, are void on their face. Thornhill v. Alabama, 310 U.S. 88 [402 U.S. 611, 617] (1940). On the other hand, laws which plainly forbid conduct which is constitutionally within the power of the State to forbid but also restrict constitutionally protected conduct may be void either on their face or merely as applied in certain instances.

As my Brother WHITE states in his opinion (with which I substantially agree), this is one of those numerous cases where the law could be held unconstitutional because it prohibits both conduct which the Constitution safeguards and conduct which the State may constitutionally punish. Thus, the First Amendment which forbids the State to abridge freedom of speech, would invalidate this city ordinance if it were used to punish the making of a political speech, even if that speech were to annoy other persons. In contrast, however, the ordinance could properly be applied to prohibit the gathering of persons in the mouths of alleys to annoy passersby by throwing rocks or by some other conduct not at all connected with speech. It is a matter of no little difficulty to determine when a law can be held void on its face and when such summary action is inappropriate. This difficulty has been aggravated in this case, because the record fails to show in what conduct these defendants had engaged to annoy other people. In my view, a record showing the facts surrounding the conviction is essential to adjudicate the important constitutional issues in this case.

I would therefore vacate the judgment and remand the case with instructions that the trial court give both parties an opportunity to supplement the record so that we may determine whether the conduct actually punished is the kind of conduct which it is within the power of the State to punish. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting. The claim in this case, in part, is that the Cincinnati ordinance is so vague that it may not constitutionally [402 U.S. 611, 618] be applied to any conduct. But the ordinance prohibits persons from assembling with others and "conduct[ing] themselves in a manner annoying to persons passing by . . . ." Cincinnati Code of Ordinances 901-L6. Any man of average comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others and are clearly covered by the "annoying conduct" standard of the ordinance. It would be frivolous to say that these and many other kinds of conduct are not within the foreseeable reach of the law.

It is possible that a whole range of other acts, defined with unconstitutional imprecision, is forbidden by the ordinance. But as a general rule, when a criminal charge is based on conduct constitutionally subject to proscription and clearly forbidden by a statute, it is no defense that the law would be unconstitutionally vague if applied to other behavior. Such a statute is not vague on its face. It may be vague as applied in some circumstances, but ruling on such a challenge obviously requires knowledge of the conduct with which a defendant is charged. In Williams v. United States, 341 U.S. 97 (1951), a police officer was charged under federal statutes with extracting confessions by force and thus, under color of law, depriving the prisoner there involved of rights, privileges, and immunities secured or protected by the Constitution and laws of the United States, contrary to 18 U.S.C. 242. The defendant there urged that the standard - rights, privileges, and immunities secured by the Constitution - was impermissibly vague and, more particularly, that the Court was often so closely divided on illegal-confession issues that no defendant could be expected to know when he was violating the law.

The Court's response was that, while application of the statute [402 U.S. 611, 619] to less obvious methods of coercion might raise doubts about the adequacy of the standard of guilt, in the case before it, it was "plain as a pikestaff that the present confessions would not be allowed in evidence whatever the school of thought concerning the scope and meaning of the Due Process Clause." Id., at 101. The claim of facial vagueness was thus rejected. So too in United States v. National Dairy Corp., 372 U.S. 29 (1963), where we considered a statute forbidding sales of goods at "unreasonably" low prices to injure or eliminate a competitor, 15 U.S.C. 13a, we thought the statute gave a seller adequate notice that sales below cost were illegal. The statute was therefore not facially vague, although it might be difficult to tell whether certain other kinds of conduct fell within this language. We said: "In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged." Id., at 33.

See also United States v. Harriss, 347 U.S. 612 (1954). This approach is consistent with the host of cases holding that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21 (1960), and cases there cited. Our cases, however, including National Dairy, recognize a different approach where the statute at issue purports to regulate or proscribe rights of speech or press protected by the First Amendment. See United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Kunz v. New York, 340 U.S. 290 (1951). Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is [402 U.S.

611, 620] permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. Dombrowski v. Pfister, 380 U.S. 479, 491 -492 (1965). The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights. See United States v. National Dairy Corp., supra, at 36. Even accepting the overbreadth doctrine with respect to statutes clearly reaching speech, the Cincinnati ordinance does not purport to bar or regulate speech as such. It prohibits persons from assembling and "conduct[ing]" themselves in a manner annoying to other persons. Even if the assembled defendants in this case were demonstrating and picketing, we have long recognized that picketing is not solely a communicative endeavor and has aspects which the State is entitled to regulate even though there is incidental impact on speech. In Cox v.

Louisiana, 379 U.S. 559 (1965), the Court held valid on its face a statute forbidding picketing and parading near a courthouse. This was deemed a valid regulation of conduct rather than pure speech. The conduct reached by the statute was "subject to regulation even though [it was] intertwined with expression and association." Id., at 563. The Court then went on to consider the statute as applied to the facts of record. In the case before us, I would deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was [402 U.S. 611, 621] charged against these defendants, we are in no position to judge the statute as applied. That the ordinance may confer wide discretion in a wide range of circumstances is irrelevant when we may be dealing with conduct at its core. I would therefore affirm the judgment of the Ohio Supreme Court. [402 U.S.

611, 622] Google Map of Cincinnati, Ohio, USA - Nations Online Project United States . The city (nickname: the Queen City) is located in southwestern Ohio on a hilly landscape along the Ohio River, at the Ohio-Kentucky border opposite Covington and Newport, Kentucky . John A. Roebling Suspension Bridge, spanning the Ohio River (a tributary of the Mississippi) between Cincinnati, Ohio and Covington, Kentucky. Photo: Derek Jensen Cincinnati was founded in 1788, it has been the first American boomtown in the heart of the country in the early nineteenth century to rival the larger coastal cities in size and wealth, but it suffered from economic restructuring and loss of jobs following deindustrialization in the mid-20 century. Today (in 2016) the city has a population of just under 300,000 inhabitants, 2.2 million people live in the Cincinnati-Northern Kentucky metropolitan area. Cincinnati is home to the main campus of the University of Cincinnati which traces its foundation to the Medical College of Ohio. Procter & Gamble, the world's largest consumer products company has its headquarters in Cincinnati.

Cincinnati's main attractions: Image: Chuck Eilerman (OTR) Places: Downtown Cincinnati (the city's central business district), Cincinnati Museum Center at Union Terminal (passenger railroad station and museum, home to Cincinnati History Museum, the Museum of Natural History & Science, Omnimax Theater movie house, the Cincinnati Historical Society, Library Duke Energy Children's Museum, and The Cincinnati Railroad Club), Cincinnati Observatory (oldest professional observatory in the United States), Great American Tower at Queen City Square (headquarters of the Great American Insurance Company), Fountain Square (city square lined with shops, restaurants, hotels, and offices), Aronoff Center (performing arts venue), Cincinnati Music Hall (classical music performance), Duke Energy Convention Center (convention center) Museums: National Underground Railroad Freedom Center (Freedom Center), Taft Museum of Art (historic building with a fine art museum), Cincinnati Art Museum (one of the oldest art museums in the United States, founded in 1881), Contemporary Arts Center - CAC (art museum with focus on new developments in painting, sculpture, photography, architecture, performance art and new media) Outdoors: Coney Island (historic fun park with a giant pool) Parks: Cincinnati Zoo and Botanical Garden

 (second oldest zoo in the United States), Mount Airy Forest (urban reforestation project and largest park in Cincinnati's park system), Ault Park (flower garden and Italian Renaissance-style pavilion) Stadiums: Great American Ball Park (home field of Major League Baseball's Cincinnati Reds), Paul Brown Stadium (home to NFL's Cincinnati Bengals) Just zoom in to see Cincinnati's Central Business District.

The Map shows a city map of Cincinnati with expressways, main roads and streets, Cincinnati/Northern Kentucky International Airport ( IATA code : CVG) is situated in Hebron, Kentucky 12.6 mi (20 km) by road, south west of Cincinnati's city center. To find a location use the form below. To view just the map, click on the "Map" button. To find a location type: street or place, city, optional: state, country. Local Time Cincinnati: Thursday-January-19 2017 18:36 Standard time zone Eastern (EST): UTC / GMT -5 hours Daylight Saving Time (EDT) in use from the second Sunday in March, ends on the first Sunday in November; time zone offset: UTC/GMT -4 hours φ Latitude, λ Longitude (of Map center; move the map to see coordinates): , Google Map: Searchable Map of the City of Cincinnati, Ohio, USA.

City Coordinates: 39°8′10″N 84°30′11″W Where is Cincinnati, Ohio | Where is Cincinnati, OH Located in USA Where is Cincinnati, Ohio Disclaimer Close Disclaimer : All efforts have been made to make this image accurate. However Compare Infobase Limited, its directors and employees do not own any responsibility for the correctness or authenticity of the same. 79.54 sq mi (206.01 km2) Population 39°6′N 84°31′W Official Language De jure: None , De facto: English Calling Code EST (UTC-5) Summer (DST) EDT (UTC-4) Airport United State Dollar (USD) Cincinnati, Ohio Cheerful. Thriving. Animated. First major metropolis founded after the American Revolution, Cincinnati at the first glance seems as enthusiastic as a teenager. From distinct culture to vibrant lifestyle, everything in 'Queen City' leans toward liberalism except politics. With meadow-marked countryside and rolling hills only a few minutes away, there's more to Cincinnati than meets the eye.

Getting In and Around Situated on the north bank of the Ohio River, Cincinnati is in the bluegrass region of southwestern Ohio. It is about 107 miles from Columbus and 240 miles from Cleveland. By Air – Cincinnati/Northern Kentucky International Airport (CVG) serves the Greater Cincinnati metropolitan area. By Rail – Amtrak operates Cardinal passenger train thrice a week through the Union Terminal. SORTA (Metro) network connects major attractions in the city. By Road – Interstate highways 71, 74, and 75 traverse the city. Greyhound and Megabus provide intercity bus service. Best Time to Visit Late spring around May or early fall around September are ideal seasons to visit Cincinnati. For those who can bear with humidity, festivals and concerts in summer are a treat. What's in Cincinnati Most attractions in the city are focused around Fountain Square. The American Classical Music Hall of Fame, Cincinnati Art Museum, Cincinnati Fire Museum, and National Underground Railroad Freedom Center are the most visited places in the city. The Cincinnati Skywalk is a labyrinth of walkways which traverse downtown. Opened in 1875, Cincinnati Zoo and Botanical Garden, in Avondale neighborhood, is the second oldest Zoo in America.

Put on a poker face at Jack Cincinnati Casino, watch beautiful cityscape from Carew Tower and Observation Deck, set a date with stars at Cincinnati Observatory Center, or go for a walk in Spring Grove Cemetery and Arboretum, the choices are aplenty. Annual festivals like Bockfest and Oktoberfest Zinzinnati show that German and Irish heritage is still prevalent in the Midwestern culture of Cincinnati. Pick up the tab for a stranger in Arnold's Bar and Grill or sample local delicacies like Cincinnati chili and German-inspired Goetta.

Question: In which US state is the city of Cincinnati?
Answer: OHIO